Thomas, Ralph - Order, February 14, 2003

Order, February 14, 2003

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of the Alleged Violation of Article 23 & 71 of the Environmental
Conservation Law of the State of New York and Title 6, Part 420 of the Official
Compilation of Codes, Rules and Regulations of the State of New York.

-- by --

Ralph Thomas,
Respondent.
ORDER
Case No. R4-1999-1229-8

WHEREAS:

Pursuant to Section 622.15 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR") Staff of the New York State Department of Environmental Conservation duly served a Notice of Hearing and Complaint upon the Respondent, Ralph Thomas by personal service. The affidavit of Environmental Conservation Officer Linda F. Acierno states that the Respondent was personally served with a true and correct copy of the Notice of Hearing and Complaint on March 10, 2001.

The complaint asserted two causes of action. The first cause of action asserted that the Respondent has conducted mining operations without the required DEC permit at his facility located at the end of Hemlock Ridge Way, in the Town of Stephentown, Rensselaer County, NY during the years 1997, 1998 and 1999. Respondent is in violation of ECL §23-2711 and ECL §71-1305(2). The second cause of action asserted that the Respondent operated a solid waste management facility without a permit at the same site in violation of ECL §27-0707(1) and 6 NYCRR 360-1.7(a). However, DEC Staff has not moved for a default on this second cause of action.

The notice of hearing and complaint stated that an answer to the complaint was due within 20 days of service of the complaint. The notice included a statement that, pursuant to 6 NYCRR 622.15, a failure to timely answer would result in a default under 6 NYCRR 622.15 and a waiver of Respondent's right to a hearing. Respondent failed to serve an answer. Accordingly, Department Staff's allegations against Respondent in its complaint are deemed to have been admitted by the Respondent.

Staff documents by affirmation of Robert P. Leslie that:

Respondent failed to serve on the Department an answer within 20 days of its receipt of the notice of hearing and complaint or in an otherwise timely manner;

the penalty imposed is appropriate based on the violation and the duration of the violation; and

failure to answer a complaint is grounds for a default judgment pursuant to 6 NYCRR 622.15.

A copy of the notice of motion and supporting papers seeking the judgment by default were filed with the Office of Hearings and Mediation Services and the matter was assigned to Administrative Law Judge (ALJ) P. Nicholas Garlick. A copy of the ALJ's Default Summary Report is attached. I adopt the ALJ's report.

NOW, THEREFORE, having considered this matter, it is ORDERED that:

Pursuant to 6 NYCRR 622.15, Respondent is found to be in default for having failed to answer the complaint and is found to have violated ECL §23-2711 and §71-1305(2)

Respondent is assessed a civil penalty of fifteen thousand ($15,000) dollars and shall, within thirty (30) days of the service of a conformed copy of this Order, submit this payment by cashier's check, certified check or money order drawn to the order of "NYSDEC" to: Regional Attorney, Legal Affairs Region 4, New York State Department of Environmental Conservation, 1150 North Westcott Road, Schenectady, NY 12306-2014.

Respondent, Ralph Thomas, shall within 30 days of service of this Order submit to the Department a complete application for a permit to conduct mining operations at his mine on Hemlock Ridge Way, in the Town of Stephentown, New York (the "site"). This application shall include an approvable Mined Land-Use Plan for the site. Respondent's plan shall not be deemed to be in compliance with this Order until Respondent has received, in writing, the Department's approval.

Respondent, Ralph Thomas, shall immediately cease mining until a permit to operate the mine is obtained from the Department.

Respondent, Ralph Thomas, shall cease all extractive operations at the site until all requirements set forth in this Order have been accomplished to the satisfaction of the Department.

Respondent, Ralph Thomas, shall supply to the Department a reclamation bond in the amount of $25,000. This bond shall remain in force and effect until such time as Respondent shall obtain from the Department a valid permit to operate a mine at the site or the site is reclaimed to the satisfaction of the Department.

In the event that Respondent elects not to obtain a permit to allow continued operation of the mine, then prior to September 1, 2003, Respondent must reclaim the affected area to the following specifications:

All final slopes must be graded to a slope no steeper than 1 vertical on 2 horizontal;

A minimum of 6 inches of topsoil must be replaced over the entire extent of affected areas;

Fertilize site with 14-25-12 starter fertilizer at a rate of 600 lbs./acre;

Seed the site with a conservation mix at rate of 60 lbs./acre; and

Mulch site with hay at a rate of 2 tons/acre for 100% coverage without bare spots.

Within 30 calendar days of service of this Order, Respondent shall excavate the area(s) where landfill materials were identified, in the presence of and under the direction of DEC Region 4 Mined Land Reclamation staff. The Mined Land Reclamation staff shall determine the limits of the requisite excavation(s) both vertically and horizontally. No excavation or removal of landfilled materials shall occur without Region 4 Mined Land Reclamation Staff present at the site without prior written approval of the Department.

Within 37 days of service of this Order, Respondent shall remove and affect the proper disposal of any and all solid waste of any type from the site.

Within 45 days of service of this Order, Respondent shall provide Region 4 Mined Land Reclamation staff with documentation to evidence the proper disposal of the solid waste at a DEC permitted facility.

All communications from the Respondent to the Department concerning this order shall be made to the Department's Region 4 Director,1150 North Westcott Road, Schenectady, New York 12306-2014.

The provisions, terms and conditions of this order shall bind the Respondent, its agents, servants, employees, successors and assigns and all persons, firms and corporations acting for or on behalf of the Respondent.

For the New York State Department
of Environmental Conservation
/s/
By: Erin M. Crotty, Commissioner

In the Matter of the Alleged Violation of Article 23 & 71 of the Environmental
Conservation Law of the State of New York and Title 6, Part 420 of the Official
Compilation of Codes, Rules and Regulations of the State of New York.

-- by --

Ralph Thomas,
Respondent.

SUMMARY REPORT

Case No. R4-1999-1229-8

Porceedings

By a Complaint dated February 9, 2001, staff of the Department of Environmental Conservation (DEC Staff) alleged two causes of action against Ralph Thomas (Respondent). Specifically, that the Respondent: 1) had operated a mine without a permit, in violation of §23-2711 of the Environmental Conservation Law (ECL) and violated §71-1305(2) of the ECL; and 2) had operated a solid waste management facility in violation of §27-0808(1) of the ECL and §360-1.7(a) of Title 6 of the Official Compilation of Codes, Rules and Regulations of New York (6 NYCRR). However, neither the caption for this action nor the prayer for relief contained within the Complaint made reference to the second cause of action described above.

By notice of motion dated May 23, 2001, DEC Staff sought a judgment by default against the Respondent concerning alleged violations of Articles 23 and 71 of the Environmental Conservation Law (ECL). It is alleged by DEC Staff that Respondent violated Articles 23 and 71 of the ECL by failing to obtain a permit to conduct mining activities regulated by the Department. In support of its motion, DEC Staff submitted an affirmation of Regional Attorney Robert P. Leslie, a proposed Order, and an affidavit of personal service of the Notice of Hearing and Complaint on the Respondent, by Environmental Conservation Officer Linda Aceierno, on March 10, 2001.

To date, the Respondent has failed to serve an Answer or otherwise move, although the time to do so expired on or about March 30, 2001

Respondent was served with the Notice of Motion for Default Judgment and supporting papers dated May 23, 2001. Respondent has not opposed the motion.

By letter dated May 9, 2002, DEC Staff confirmed that it sought only a default on the first cause of action in the Complaint. The second cause of action remains pending.

Default Procedures

Section 622.15, "Default Procedures" provides, in pertinent part: (b) The motion for a default judgment .... must contain: (1) Proof of service upon the respondent of the notice of hearing and complaint or such other document which commenced the proceeding; (2) Proof of the respondent's failure to appear or failure to file a timely answer; and (3) A proposed order."

The following Findings are based upon the papers submitted, as identified above.

Fingings

On or about March 10, 2001 Staff served a Notice of Hearing and Complaint on Respondent Ralph Thomas. The time to Answer or otherwise move expired on March 30, 2001. No Answer has been served to date.

Staff served the motion for default judgment and supporting papers on Respondent on or about May 25, 2001. Respondent has not opposed said motion. The time to serve papers in opposition expired on or about May 30, 2001.

The requirements for a default judgment have been adequately met as prescribed by 6 NYCRR section 622.15(b).

Conclusion

The motion for default judgment should be granted with respect to DEC Staff's alleged violations of Articles 23 and 71. This Default Summary Report and Staff's proposed Order (attached hereto) are referred to the Commissioner for final determination.